Limitation of Liability - EFET Allowance Provision

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2007 EFET General Agreement
Version 2.1(a) (Power)

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§ 12 Limitation of Liability. For the avoidance of doubt, the Parties agree that if an EEP or EEP Equivalent applies to an Allowance Transaction such EEP or EEP Equivalent shall not be considered an indirect or consequential damage of the type excluded from recovery of damages by § 12.3 (Consequential Damage and Limitation of Liability) of the General Agreement, and that such maximum amount of such EEP or EEP Equivalent, being an amount identifiable by them at the time of entering into their Allowance Transaction, is neither speculative nor difficult to ascertain. The Parties further agree and acknowledge that the formulae providing for calculating the amount of EEP and EEP Equivalent in this Allowances Appendix are reasonable in light of the anticipated harm that would be incurred by a Buyer and are therefore a genuine pre-estimate of the nature and magnitude of such harm. Further, the payment of such damages is not viewed by either Party as a penalty or in the nature of a penalty and each Party waives the right to contest those payments as an unreasonable penalty. In addition, the Parties agree to amend § 12.3(a) (Consequential Damage and Limitation of Liability) of the General Agreement by adding the words “(other than with respect to a claim under § 6.3 (No Encumbrances))” after the words “consequential Damages” in the first line thereof. Except to the extent otherwise modified herein by the Parties, there shall be no further changes to § 12 (Limitation of Liability) of the General Agreement with respect to Allowance Transactions.


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